Commission Regulation (EU) No 965/2012 of 5 October 2012 laying down technical requirements and administrative procedures related to air operations pursuant to Regulation (EC) No 216/2008 of the European Parliament and of the Council

Article 1

Subject matter and scope

This Regulation shall not apply to the following operations conducted with gyroplanes:

(a) commercial operations, except for those operations specified in Article 6(4a);

(b) operations conducted under instrument flight rules.

Article 2

Definitions

For the purposes of this Regulation:

(1) ‘aeroplane’ means an engine-driven fixed-wing aircraft heavier than air that is supported in flight by the dynamic reaction of the air against its wings;

(1a) ‘rotorcraft’ means a power-driven, heavier-than-air aircraft that depends principally for its support in flight on the lift generated by up to two rotors;

(1aa) ‘helicopter’ means a type of rotorcraft supported in flight chiefly by the reactions of the air on up to two power-driven rotors on substantially vertical axes;

(1b) ‘balloon’ means a manned lighter-than-air aircraft which is not power-driven and sustains flight through the use of either a lighter-than-air gas or an airborne heater, including gas balloons, hot-air balloons, mixed balloons and, although power-driven, hot-air airships;

(1c) ‘sailplane’ means a heavier-than-air aircraft that is supported in flight by the dynamic reaction of the air against its fixed lifting surfaces, the free flight of which does not depend on an engine;

(1d) ‘commercial operation’ means any operation of an aircraft, in return for remuneration or other valuable consideration, which is available for the public or, when not made available to the public, which is performed under a contract between an operator and a customer, where the latter has no control over the operator;

(1e) ‘tethered gas balloon’ means a gas balloon with a tether system that continuously anchors the balloon to a fixed point during operation;

(2) ‘performance class B aeroplanes’ means aeroplanes powered by propeller engines with a maximum operational passenger seating configuration of nine or less and a maximum take-off mass of 5 700 kg or less;

(3) ‘public interest site (PIS)’ means a site used exclusively for operations in the public interest;

(4) ‘operation in performance class 1’ means an operation that, in the event of failure of the critical engine, the helicopter is able to land within the rejected take-off distance available or safely continue the flight to an appropriate landing area, depending on when the failure occurs;

(5) ‘performance-based navigation (PBN)’ means area navigation based on performance requirements for aircraft operating along an ATS route, on an instrument approach procedure or in a designated airspace;

(6) ‘air taxi operation’ means, for the purpose of flight time and duty time limitations, a non-scheduled on demand commercial air transport operation with an aeroplane with a maximum operational passenger seating configuration (‘MOPSC’) of 19 or less;

(7) ‘specialised operation’ means any operation, other than commercial air transport operation, where the aircraft is used for specialised activities such as agriculture, construction, photography, surveying, observation and patrol, aerial advertisement, maintenance check flights;

(8) ‘high risk commercial specialised operation’ means any commercial specialised aircraft operation carried out over an area where the safety of third parties on the ground is likely to be endangered in the event of an emergency, or, as determined by the competent authority of the place where the operation is conducted, any commercial specialised aircraft operation that, due to its specific nature and the local environment in which it is conducted, poses a high risk, in particular to third parties on the ground;

(9) ‘introductory flight’ means any operation against remuneration or other valuable consideration consisting of an air tour of short duration for the purpose of attracting new trainees or new members, performed either by a training organisation referred to in Article 10a of Commission Regulation (EU) No 1178/2011 (¹) or by an organisation created with the aim of promoting aerial sport or leisure aviation;

(10) ‘competition flight’ means any flying activity where the aircraft is used in air races or contests, as well as where the aircraft is used to practice for air races or contests and to fly to and from racing or contest events;

(11) ‘flying display’ means any flying activity deliberately performed for the purpose of providing an exhibition or entertainment at an advertised event open to the public, including where the aircraft is used to practice for a flying display and to fly to and from the advertised event;

(12) ‘innovative air mobility (IAM) operations’ means any operation with vertical take-off and landing (VTOL)-capable aircraft in congested and non-congested areas;

(13) ‘vertical take-off and landing (VTOL)-capable aircraft’ (VCA) means a power-driven, heavier-than-air aircraft other than aeroplane or rotorcraft, capable of performing vertical take-off and landing by means of lift and thrust units used to provide lift during the take-off and landing;

(14) ‘VEMS flight’ means a flight with a VCA that operates under a VEMS approval, where immediate and rapid transportation is essential and the purpose of which is either to: (a) facilitate emergency medical assistance by carrying one or more of the following: (i) medical personnel; (ii) medical supplies (equipment, blood, organs, drugs); (iii) ill or injured persons and other persons directly involved, or (b) perform any operation where a person is at imminent or anticipated health risk from the environment and either: (i) needs to be rescued or provided with supplies; or (ii) persons, animals or equipment need to be transported to/from the VEMS operating site.

(15) ‘gyroplane’ means a type of rotorcraft supported in flight by the reactions of the air on up to two rotors which rotate freely on substantially vertical axes.

Additional definitions are laid down in Annex I for the purposes of Annexes II to VIII.

Article 3

Oversight capabilities

The administration and management systems of the competent authorities of the Member States and of the Agency shall comply with the requirements specified in Annex II.

If a Member State designates more than one entity as competent authority:

(a) the areas of competence of each competent authority shall be clearly defined in terms of responsibilities and geographic limitation; and

(b) coordination shall be established between those entities to ensure effective oversight of all organisations and persons subject to Regulation (EC) No 216/2008 and its implementing rules within their respective remits.

Personnel authorised by the competent authority to carry out certification and/or oversight tasks shall be empowered to perform at least the following tasks:

(a) examine the records, data, procedures and any other material relevant to the execution of the certification and/or oversight task;

(b) take copies of or extracts from such records, data, procedures and other material;

(c) ask for an oral explanation on site;

(d) enter relevant premises, operating sites or means of transport;

(e) perform audits, investigations, assessments, inspections, including ramp inspections and unannounced inspections;

(f) take or initiate enforcement measures as appropriate.

Article 4

Ramp inspections

Article 5

Air operations

—————Operators shall comply with the relevant provisions of Annex V when operating:

(a) aeroplanes and helicopters used for: (i) operations using performance-based navigation (PBN); (ii) operations in accordance with minimum navigation performance specifications (MNPS); (iii) operations in airspace with reduced vertical separation minima (RVSM); (iv) low-visibility operations (LVOs) or operations with operational credits;

(b) aeroplanes and helicopters used for the transport of dangerous goods (DG);

(c) two-engined aeroplanes used for extended range operations (ETOPS) in commercial air transport;

(d) helicopters used for commercial air transport operations with the aid of night vision imaging systems (NVIS);

(e) helicopters used for commercial air transport hoist operations (HHO); —————

(f) helicopters used for commercial air transport emergency medical service operations (HEMS); and

(g) helicopters used for offshore operations (HOFO).

(h) VCA used for: (i) the transport of dangerous goods (DGs); (ii) VEMS.

Training organisations referred to in Article 10a of Regulation (EU) No 1178/2011 and having their principal place of business in a Member State shall, when conducting flight training into, within or out of the Union, operate:

(a) complex motor-powered aeroplanes and helicopters in accordance with the provisions specified in Annex VI;

(b) other aeroplanes and  rotorcraft in accordance with the provisions specified in Annex VII.

(c) VCA in accordance with the requirements specified in Annex IX.

In the case of points (a), (b) and (c) of the first subparagraph, the training organisations shall comply with the requirements laid down in Annex VII (Part-ORA) to Regulation (EU) No 1178/2011 instead of Annex III (Part-ORO) of this Regulation. Training for VCA shall only be provided by approved training organisations.

Article 6

Derogations

A Member State, other than an addressee of Decision C(2009)7633, which intends to use the derogation provided for in that Decision shall notify its intention to the Commission and the Agency before the derogation is implemented. The Commission and the Agency shall assess to what extent the change or the intended use deviates from the conditions of Decision C(2009)7633 or impacts on the initial safety assessment performed in the context of that Decision. If the assessment shows that the change or the intended use does not correspond to the initial safety assessment done for Decision C(2009)7633, the Member State concerned shall submit a new derogation request in accordance with Article 14(6) of Regulation (EC) No 216/2008.

By way of derogation from Article 5 of this Regulation and without prejudice to point (b) of Article 18(2) of Regulation (EU) 2018/1139 and to Subpart P of Annex I to Commission Regulation (EU) No 748/2012 (²) concerning the permit to fly, the following flights shall continue to be operated under the requirements specified in the national law of the Member State in which the operator has its principal place of business, or, where the operator has no principal place of business, the place where the operator is established or resides:

(a) flights related to the introduction or modification of aeroplane or  rotorcraft types conducted by design or production organisations within the scope of their privileges;

(b) flights carrying no passengers or cargo, where the aeroplane or  rotorcraft is ferried for refurbishment, repair, inspections, delivery, export or similar purposes, provided that the aircraft is not listed on an air operator certificate or on a declaration.

By way of derogation from Article 5(1) and (6), the following operations with other-than-complex motor-powered aeroplanes and helicopters may be conducted in accordance with Annex VII:

(a) cost-shared flights by private individuals, on the condition that the direct cost is shared by all the occupants of the aircraft, pilot included and the number of persons sharing the direct costs is limited to six;

(b) competition flights or flying displays, on the condition that the remuneration or any valuable consideration given for such flights is limited to recovery of direct costs and a proportionate contribution to annual costs, as well as prizes of no more than a value specified by the competent authority;

(c) introductory flights, parachute dropping, sailplane towing or aerobatic flights performed either by a training organisation having its principal place of business in a Member State and referred to in Article 10a of Regulation (EU) No 1178/2011, or by an organisation created with the aim of promoting aerial sport or leisure aviation, on the condition that the aircraft is operated by the organisation on the basis of ownership or dry lease, that the flight does not generate profits distributed outside of the organisation, and that whenever non-members of the organisation are involved, such flights represent only a marginal activity of the organisation.

If any change to the operation of those aeroplanes that affects the conditions set out in those exemptions is envisaged between 22 March 2017 and 2 September 2017, that envisaged change shall be notified to the Commission and the Agency before it is implemented. The Commission and the Agency shall assess the envisaged change in accordance with Article 14(5) of Regulation (EC) No 216/2008.

Member States shall notify the Commission and the Agency of the conditions being applied.

Article 7

Air operator certificates

However, no later than 28 October 2014:

(a) operators shall adapt their management system, training programmes, procedures and manuals to be compliant with Annexes III, IV and V, as relevant;

(b) the AOC shall be replaced by certificates issued in accordance with Annex II to this Regulation.

The conversion report shall describe:

(a) the national requirements on the basis of which the AOCs were issued;

(b) the scope of privileges that were given to the operators;

(c) the differences between the national requirements on the basis of which the AOCs were issued and the requirements of Annexes III, IV and V, together with an indication of how and when the operators will be required to ensure full compliance with those Annexes.

The conversion report shall include copies of all documents necessary to demonstrate the elements set out in points (a) to (c), including copies of the relevant national requirements and procedures.

Article 8

Flight time limitations

Article 9

Minimum equipment lists

Minimum equipment lists (‘MEL’) approved by the State of Operator or Registry before the application of this Regulation, are deemed to be approved in accordance with this Regulation and may continue to be used by the operator.

After the entry into force of this Regulation any change to the MEL referred to in the first subparagraph for which a Master Minimum Equipment List (‘MMEL’) is established as part of the operational suitability data in accordance with Commission Regulation (EU) No 748/2012 (³) shall be made in compliance with point ORO.MLR.105 of Section 2 of Annex III to this Regulation at the earliest opportunity and not later than 18 December 2017 or two years after the operational suitability data was approved, whichever is the latest.

Any change to an MEL referred to in the first subparagraph, for which an MMEL has not been established as part of the operational suitability data, shall continue to be made in accordance with the MMEL accepted by the State of Operator or Registry as applicable.

Article 9a

Flight and cabin crew training

Operators shall ensure that flight crew and cabin crew members who are already in operation and have completed training in accordance with Subparts FC and CC of Annex III which did not include the mandatory elements established in the relevant operational suitability data, undertake training covering those mandatory elements not later than 18 December 2017 or two years after the approval of the operational suitability data, whichever is the latest.

Article 9aa

Flight crew requirements for maintenance check flights

A pilot having acted, before 25 September 2019, as a pilot-in-command on a maintenance check flight that in accordance with the definition in point SPO.SPEC.MCF.100 in Annex VIII is categorised as a Level A maintenance check flight, shall be given credit for the purpose of complying with point SPO.SPEC.MCF.115(a)(1) of that Annex. In that case, the operator shall ensure that the pilot-in-command receives a briefing on any differences identified between the operating practices established before 25 September 2019 and the obligations provided in Section 5 of Subpart E of Annex VIII to this Regulation including those derived from the related procedures established by the operator.

Article 9b

Review

That review shall involve scientific expertise and shall be based on operational data gathered, with the assistance of Member States, on a long-term basis after the date of application of this Regulation.

The review shall assess the impact of at least the following on the alertness of aircrew:

(a) duties of more than 13 hours at the most favourable times of the day;

(b) duties of more than 10 hours at less favourable times of the day;

(c) duties of more than 11 hours for crew members in an unknown state of acclimatisation;

(d) duties including a high level of sectors (more than 6);

(e) on-call duties such as standby or reserve followed by flight duties; and

(f) disruptive schedules.

That review shall involve relevant expertise and shall be based on data gathered, with the assistance of Member States and the Agency, on a long-term basis.

Article 10

Entry into force

It shall apply from 28 October 2012.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

ANNEX I

Annex I – Definitions for terms used in Annexes II to IX

For the purpose of this Regulation, the following definitions shall apply:

(1) ‘accelerate-stop distance available (ASDA)’ means the length of the take-off run available plus the length of stopway, if such stopway is declared available by the State of the aerodrome and is capable of bearing the mass of the aeroplane under the prevailing operating conditions;

(2) ‘acceptable means of compliance (AMC)’ means non-binding standards adopted by the Agency to illustrate means to establish compliance with Regulation (EC) No 216/2008 and its Implementing Rules;

(3) ‘acceptance checklist’ means a document used to assist in carrying out a check on the external appearance of packages of dangerous goods and their associated documents to determine that all appropriate requirements have been met with;

(4) ‘adequate aerodrome’ means an aerodrome on which the aircraft can be operated, taking account of the applicable performance requirements and runway characteristics;

(5) For the purpose of passenger classification: (a) ‘adult’ means a person of an age of 12 years and above; (b) ‘child/children’ means persons who are of an age of two years and above but who are less than 12 years of age; (c) ‘infant’ means a person under the age of two years;

(6) ‘aerodrome operating minima’ means the limits of usability of an aerodrome for: (a) take-off, expressed in terms of runway visual range (RVR) and/or visibility and, if necessary, ceiling ; (b) landing in 2D instrument approach operations, expressed in terms of visibility and/or RVR, minimum descent altitude/height (MDA/H) and, if necessary, ceiling; (c) landing in 3D instrument approach operations, expressed in terms of visibility and/or RVR and decision altitude/height (DA/H) as appropriate to the type and/or category of the operation;

(7) ‘aided night vision imaging system (NVIS) flight’ means, in the case of NVIS operations, that portion of a visual flight rules (VFR) flight performed at night when a crew member is using night vision goggles (NVG);